MWITA WILSON PAUL MAROA V GISUKA WILFRED MACHAGE, ELECTORAL COMMISSION OF KENYA & ANDREW RIANGA [2008] KEHC 3641 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA OF KISII

Election Petition 5 of 2008

IN THE MATTER OF THE NATIONAL ASSEMBLY AND PRESIDENTIAL ELECTIONS ACT, CHAPTER 7 OF THE LAWS OF KENYA

AND

IN THE MATTER OF THE PRESIDENTIAL AND PARLIAMENTARY ELECTIONS REGULATIONS AND THE NATIONAL ASSEMBLY (ELECTION PETITION) RULES

AND

IN THE MATTER OF THE ELECTION OFFENCES ACT, CHAPTER 66 OF THE LAWS OF KENYA

AND

IN THE MATTER OF ELECTION FOR THE KURIA CONSTITUENCY

MWITA WILSON PAUL MAROA ………………........……. PETITIONER

VERSUS

GISUKA WILFRED MACHAGE …………............….. 1ST RESPONDENT

ELECTORAL COMMISSION OF KENYA ….....…… 2ND RESPONDENT

ANDREW RIANGA ………………………….......….. 3RD RESPONDENT

RULING:

This is an application by the 1st Respondent, under the Provisions of Section 44, and 60 of the Constitution of Kenya, Section 3 of the Judicature Act Cap 8, Section 20 and 23 1(d) and 2 of the National Assembly and Presidential Elections Act Cap 7 and the Rule 14 of the National Assembly Elections (Election Petition) Rules, 1993.

The Petitioner was one of the candidates and also a person who had a right to vote and did vote in the parliamentary Elections for the National Assembly seat for the Kuria Constituency held on 27th day of December, 2007 under the National Assembly and Presidential Elections Act, Chapter 7 of the Laws of Kenya.( hereinafter referred to as the “Act”) and the Presidential and Parliamentary Elections Regulations (hereinafter referred to as “ the Regulations”).

The First Respondent was one of the other candidates in the said election and was declared to be the successful candidate for the said parliamentary seat for Kuria.  The second Respondent is the Electoral Commission of Kenya established under the Constitution of Kenya whose conduct and the conduct of whose officials is complained of in relation to the said election.  The third Respondent was the Returning Officer for the said constituency on the said election, appointed by the second Respondent as its official and is joined herein by reason of his conduct and the conduct of its officials complained of in the said election.

Being aggrieved with the declared results, the Petitioner presented this Petition on 24th January, 2008.  The 1st Respondent then filed this application on 28th Feb 2006 seeking the following orders:-

1. That the Petition herein be and is herebystruck off for the reason that it isfatally defective, invalid and a nullity.

2. That costs of this motion and the petitionbe awarded to the 1st Respondent.

The 1st Respondent raises two substantive grounds in support of the application.  These are:-

1. That the petition was not served uponthe 1st Respondent within the periodof time prescribed by law.

2. That there is no valid petition before thiscourt on which the Honourable Courtcan exercise its competent jurisdictionto determine:

The Application is supported by an affidavit sworn by Wilfred Gisuka Machage, the 1st Respondent on 25th February, 2008.  In the said affidavit the Applicant depones inter alia that:-

-     The Chairman of the Electoral Commission declared election results in respect of his constituency on 30th December 2007 vide a special issue of the Kenya Gazette published on the same day.

-     The Petitioner did not serve him with the petition or notice of the same at any time before the said publication.

-     No proper service of the petition was effected upon his person within the period prescribed by law or any at all.

The Application was supported by the 2nd and 3rd Respondents.  The Petitioner opposed the application by filing a Replying Affidavit.  In the said affidavit sworn by Mwita Wilson Paul Maroa, he inter alia stated that:-

-     The applicant had admitted service and filed a regular Notice of Appointment and not one under protest.

-     The Applicant’s documents annexed clearly show that the Applicant was served as mandated provided for and regulated by law.

-     In any event, the applicant could not be served otherwise as attempts to serve him at his offices proved futile for the reasons explained in the affidavit of service of one Samuel Hawuori sworn on the 8th February, 2008 and filed in court on the 11th February 2008.

-     I and my Advocates exercised due caution and proceeded to serve the petition by way of publication in the Kenya Gazette when the Applicant perfected the art of evading service.

-     The petition is properly before this Honourable Court and is valid for determination by this Honourable court.

-     The Affidavit by the Applicant fails to demonstrate the alleged invalidity, nullity, voidity, misconception or defect.

-    This application is purely intended to delay the hearing of the petition.

The Application was prosecuted by Mr. T.J. Kajwang and Mr. Ayacko Advocates who represent the 1st Respondent while the petitioner was represented by Mr. Murage Advocate.  The 2nd and 3rd Respondents were represented by Mr. F. Tuiyott.

I have considered the application, the rival affidavits and submissions by counsel.  I am grateful to them for their concise but clear articulations of their respective client’s cases and positions.

This application is substantively about service of the petition.  Was the 1st Respondent duly served with the petition in accordance with the law?

Section 20 (11 of the Act (Cap.7) deals with the question of presentation of and service of the petition.

Section 20 (1) (a) provide as follows:-

“20 (1) A petition –

(a)to question the validity of an election,shall be presented and served withintwenty-eight days after the date ofpublication of the result ofthe election in the Gazette.

(b)---------------------------------------------

(c)---------------------------------------------

(i)------------------------------------------

(ii)------------------------------------------

(iii)------------------------------------------

(iv)where after due diligence it is notpossible to effect service underparagraph (a) and (b);the presentation may be effectedby its publication in the Gazette andin one English and one Kiswahililocal daily newspaper with thehighest national circulation in each case.”

The Petitioner in his Replying Affidavit claims that firstly, he duly served the applicant with the petition personally through his personal Secretary on 25th January, 2008 in his office on the 16th Floor of Co-operative House, along Haile Selassie Avenue, Nairobi.

In an annexed affidavit of service the Court Process Server, one Samuel Hawuori deponed inter alia :-

“………………………………………..

6. That at about 12. 00 p.m. on the25th January, 2008, I went tothe offices of the 1st Respondentherein at the Co-operative House,16th Floor along HaileSelassie Avenue, Nairobi.

7. That I was informed by the1st Respondent’s personalsecretary that the 1stRespondent was not going tobe in the office for a week butthat she was authorized toreceive documents on his behalf.

8. That at about 12. 30 p.m. Iserved a copy of the petition uponthe 1st Respondent’s Personalsecretary who  though requestedto sign my copy declined to do so.

……………………………………………….”

Secondly, the petitioner claims that due to caution he still went ahead to serve the petition by way of publication in the Kenya Gazette.  In the process server’s affidavit of service which is also on record, he said:

“ ………………………………………………….

8.  That on the 31st January, 2003, I again proceeded to the Government Printer, where I paid for the Gazettement of the Notice of the lodging of this petition against the 1st and 3rd Respondents respectively …………………..”

The Law requires at the first instance that the petition be “presented” within 28 days after the date of publication of the result of the election in the Gazette.  It is common ground that the result for the Kuria Constituency like most of the other constituencies in Kenya was published in the Kenya Gazette on 30th December, 2008 vide Gazette Notice No. 12615 which is annexed to the affidavit in support of the application.  The presentation of the petition in my interpretation means the lodgment or filing of the petition with the court.  Rule 3 of the National Assembly Elections (Election Petition) Rules 1993 stipulates:-

“ 3 (1) the presentation of an electionpetition shall be made by deliveringit at office of the Registrar,and the Registrar or the officer ofhis department to whom the petitionis delivered shall give a receiptin the following form –

---------------------------------------------- ”

In the definition clause, “Registrar” means the Registrar of the High Court and involves a district or deputy registrar.

I do find and hold that presentation of the petition contemplated by Section 20(a) in really the lodgment or filing of the petition with the court.  It is the institution of the election petition.  Was it done within 28 days of 30th December, 2008.  The answer is in the affirmative as the petition was presented on 24th January, 2008 within the prescribed period of 28 days.  The twenty eight days lapsed on 27th January, 2008.

What of service under Section 20 (a)?  First and foremost it is now certain that the existing law in Kenya today is that service of election petitions under Section 20 (a) must be personal service, that is, physical service on the respondent/s.

In the Court of Appeal case of KIBAKI –V- MOI(2000) 1 EA, 117 (in which I was one of the counsel for the Electoral Commission of Kenya, a fact which I disclosed during the proceedings herein), the five eminent Justices of Appeal stated that:-

“What we are saying, however is thatelection petitions are of such importanceto the parties concerned and to thegeneral public that unless Parliament hasitself specifically dispensed with the needfor personal service, then the courtsmust insist on such service.We cannot read from section 20 (1) (a)that Parliament intended to dispense withpersonal service.  Even under 14 (2) of theRules personal service was not dispensedwith. The other modes of service  wereonly alternative modes of service.

That is why in the various other casesquoted to us personal service was alwaysdescribed as the best form of service.

Section 20(1) (a) of the Act does notPrescribe any mode of service and in thosecircumstances the courts must go for thebest form of service which is personal service.”

This decision was delivered on 10th December, 1999 after the 1997 Elections.  This court recalls that the said decision raised a lot of discussion and debate in Legal circles and the public domain due to the practical difficulties and obstacles that a petitioner is likely to face in attempting to serve an election petition on an incumbent President or even on a successful parliamentary candidate who is best on going underground to evade service during the prescribed period.

It is therefore not surprising that by Act No. 7 of 2007 Section 20(a) of the Cap 7 was amended to include the following provision:-

“(IV) where after due diligence it isnot possible to effect serviceunder  paragraphs (a) and (b),the presentation may beeffected by the publication inthe Gazette and in one English and one Kiswahili local daily newspaper with the highest nationalcirculation in each case.”

This amendment clearly was intended to give relief to Petitioners where personal service was impossible or difficult due to any given circumstances including a situation whereby there is calculated deliberate evasion of service by a Respondent leaving jurisdiction or going into hiding or causing violent obstruction of service.

In my view if section 20 (1) is now read together with the amendment in 20 1 (c) (iv), then it will become even more certain and clear that service under section 20 1 (a) is personal service while service under 20 1 (c) (iv) are alternative modes of service by way of statutory substituted service.

In the Court of Appeal case of ABU CHIZABA MOHAMED –V- MOHAMED BWANA BAKARI & 2 OTHERS CIVIL APPEAL NO. 238 OF 2003, the Court of Appeal followed the KIBAKI –V- MOI Case when it said:-

“The truth of the matter is that personal service  remains the best form of service in all areas of litigation and to say that members of parliament are a different breed of people and different rules must apply to them as opposed to those applicable to other Kenyanscannot support the  principle ofequality before the law.”

The first question with regard to service under Section 20 (1) (a) is, did the petitioner serve the petition personally on the 1st Respondent?  The answer is in the negative, No.  The process server in his affidavit of service does not claim at any one time that he met and or found the 1st Respondent or served the petition on him.  The process server made only one attempt of personal service on the 25th January, 2008.  He went to the office of the 1st Respondent at 12 noon but did not find him.  He claims he was told that “the 1st Respondent was not going to be in the office for a week”.

As a result he served a copy of the petition on his personal secretary who accepted it but declined to sign for the same.

If the court were to assume or deem that indeed the person he found in the office was the personal secretary to the 1st Respondent did that service amount to personal service?  I do hold that “personal service” means actual physical direct service on the party intended or required to be served.  The so called personal secretary was not and could not be the person of the 1st Respondent.

The second question on this aspect of the issue is whether the alleged service on the personal secretary was a proper and valid service of the petition.  Again, this is on the assumption that the person served was truly a personal secretary to the 1st Respondent at the time.

I have carefully perused the National Assembly and Presidential Elections Act, Cap 7.  There is no provision that allows service of election petition through a spouse, adult child, relative, employee, servant, agent or any other person.  Service must be directly on the Respondents through the mode prescribed by the law,  i.e. personal service or the stipulated alternative mode of service.

In the petition of EMANUEL KARISA –VS- YAA & ANOTHER ELECTION PETITION NO. 1 OF 1993, (unreported) the Court of Appeal opined as follows:-

"We do not envisage that it would be a validapplication/response to say that service onthe Respondent’s wife, adult child etc oragent is a valid service …………….”

In the case of JAMES NYAMWEYA –V- COSMOS F.C. OLUOCH Election Petition NO. 74 of 1993, the Court of Appeal dealt with a similar situation where it was alleged that service had been effected through a personal secretary.  The Court observed:-

“It is thus abundantly clear as our viewthat service on an agent is invalidservice. ………………….. This wererepeated a few days later afterthe Emanuel Karisa Maithapetition, we heard submissions onservice in the Peter Goko petition.

In this later case we heard that theprincipal documents were served on aRespondent’spersonal secretary.

We rejected that as an improper andinvalid service. ……….We conclude with service on the 5thRespondent and we say that serviceif any at his office (on his personalsecretary) was invalid.  We havealready stated above that service on anagent under the election petition rulesis not proper or valid.”

I went into the aforesaid references on the factual assumption that we are dealing with service on a personal secretary.  In the present case, there is no admission that the 1st Respondent’s personal secretary was indeed served.  The process server does not give the name of the personal secretary and whether she told him that she held such a capacity.  He did not identify who otherwise introduced the lady to him as a personal secretary of the 1st Respondent.  If she held such an office, there is no evidence that she was authorized to receive court process or election petitions on behalf of the 1st Respondent.

An office secretary may have actual or ostensible authority to receive routine documents in the course and within the scope of the 1st Respondent’s duties as a public servant.  However, for a secretary to accept service of Court Process or in this case an election petition on behalf of her boss, she had to have express and clear instructions and authority.  In the absence of such evidence, the process server failed in his duties and obligations not only as a process server but as an agent of the petitioner.  As stated by the Court of Appeal in the NYAMWEYA CASE:

“ …………………………………………..again may we state that electionpetitions are important matters ofpublic interest. Going about them isa subject of special jurisdiction,forms, procedures and remedies etcthat require careful and strictcompliance.  This includes theprocess of service of the principaldocuments which we had foundto have been either totally lackingor was invalidly effected.”

On the basis of the amendment of section 20 1 (c), Act No. 7 of 2007, as stated earlier Parliament expressly provided for alternative mode of service.  For clarity, I need to refer to the words contained in Section 20 1 (c) IV, and accept repetition of the same in this ruling:

“(iv) where after due diligence is not possibleto effect service under paragraphs(a) and (b) the presentationmay be effected by its publication in theGazette and in one English and oneKiswahili local daily newspaper tothe highest national circulationin each case.”

The petitioner in his affidavit claims that he and his advocate exercised due caution and proceeded to serve the petition by way of publication in the Kenya Gazette when the applicant perfected the art of evading service.  I have carefully looked at both affidavits, the one by the petitioner and the affidavit of service by the process server there is no single evidence to prove that the 1st Respondent tried to or evaded service.  This is a wild and misplaced allegation without any foundation whatsoever.  From the evidence, it is clear that the process server and therefore the Petitioner, if true, only made one attempt to serve the 1st Respondent.  This was on 25th January, 2008 between 12 noon and 12. 30 p.m.  The court will give them the benefit of doubt though there is no corroboration.

Firstly, it was only two days before the expiry of the prescribed period of 28 days (it was to end on 27/01/08).  There was no follow up.  There was no investigation and inquiry as to the whereabouts of the 1st Defendant.

No attempt was made at Parliament or his residences or at his constituency.  The attempt to serve him was feeble, weak and almost with shocking disinterest.  Can it be said that there was due diligence as demonstrated by the consistent and elaborate attempts of service in the ABU CHIABA CASE?  Certainly not.  This was even worse than the case of NTOITHA M’ MITHIARU –V- MAOKA MAORE Civil Appeal No. 272 of 2003, where the court held that there were no satisfactory attempts made to serve.  Just like the said case this was also perhaps because the election petition was filed rather late (3 days before lapse)  in time and so the petitioner had no sufficient time available to effect the service.

I do hold that the petitioner has not shown that he exercised due diligence and that it was impossible for him to effect personal service as required by paragraph (a) for him to be entitled to invoke the alternative modes of service of the election petition.  It is the court’s duty to inquire into and determine whether there was due diligence and whether it can be said that it was impossible to serve the Respondent.  This discretion and  option may lie with the Petitioner at the first instance but it has to be ascertained and confirmed by the court.  This discretion or option is not an automatic right since personal service is the best and most fair mode of service of a petition.

The other aspect is whether the petitioner effected the presentation of the petition in the Kenya Gazette and in one English and one Kiswahili local daily newspaper with the highest national circulation in each case.  I must point out that the petitioner is required to do all three acts i.e. publish the presentation in the gazette and the two newspapers.  The word used is “and”which makes it conjunctive and not disjunctive.  The petitioner must within 28 days of filing the petition in court and after the due diligence process, publish the presentation of the petition in not only the Gazette but also one English and one Kiswahili local daily newspaper with the highest national circulation in each case.

This court takes judicial notice that as of today, the two such  English local dailies are the ‘Daily Nation’and ‘The Standard’ while the Kiswahili one is “Taifa Leo”.

I do find that the petitioner did effect presentation of the petition by publication of the same in the Kenya gazette of 1st February, 2008 vide Gazette Notice No. 653.  Upon consideration I do not think that is necessary or required that the petition itself also be published.  This would be unreasonable, expensive and punitive.

Having said that, the court finds that the said publication was clearly out of time, time-barred.  This publication as a mode of service should have been done within the aforesaid 28 days i.e by 27th January 2008.  The petitioner was late by five (5) days having published it on 1st February, 2008.

In the absence of a valid gazettement, then the petition was fatally defective, invalid and a nullity.  Sadly again, even if the Gazette was  filed in time (which it was not,) the petitioner did not cause the publication of the presentation in any local English and Kiswahili daily.  This would have still made the petition invalid, and a nullity.

I find that the petitioner almost filed the petition as an after-thought due to the timing which has subsequently given rise to the aforesaid disastrous incurable defects.

I finally find and hold that the petition was not served upon the 1st Respondent within the period of time prescribed by law.  The petition therefore must and I do hereby strike it out, i.e. the petition dated 24th January, 2008. .  The petitioner shall pay the costs of this application and the petition to the Respondents respectively.

M.K. IBRAHIM

JUDGE

4/04/08

Mr. Nyambati:  I seek leave to appeal against the ruling dated 4/04/08.  It is a right.  I ask for 14 days stay to enable Mr. Murage make a formal application if necessary.  I ask for certified copies of proceedings and the ruling.

M.K. IBRAHIM

JUDGE

4/04/08

Mr. Tuiyot:  Section 33 (4) of the Act  - an appeal lies as a matter of right.  Stay – We have no objection though there is nothing to stay.  We have not filed any bill.

Superfluous.

Mr. Nyambati:  Petition is struck out.  Execution is possible.  It is in the interest of justice to give stay of 14 days.

M.K. IBRAHIM

JUDGE

4/04/08

ORDER:  Appeal is a statutory right.  I grant leave if at all necessary.  With regard to the application to stay I see that it is really impractical to give such an order.  There is nothing to stay.  There were no interim orders.  The 1st Respondent was declared and Gazetted as a member of Parliament of Kuria.  Having dismissed the petition, the court cannot interfere with the Gazette and the M.P. discharging his duties to the Electorate.  There is nothing capable of being executed/enforced.  No bill of costs has been filed or taxed at this stage.  Application for stay is rejected.

M.K. IBRAHIM

JUDGE

4/04/08

Coram:  Ibrahim J.

CC – Omwenga

Mr. Nyambati h/b for Mr. Murage

Mr. Tuiyott for Mr. T. Kajwang for the 1st Respondent

Mr. Tuiyott for the 2nd and 3rd Respondents

Ruling delivered.

M.K. IBRAHIM

JUDGE

4/04/08